Denied and Opinion Filed October 15, 2018

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-01157-CV

IN RE TUNAD ENTERPRISES, INC., Relator

Original Proceeding from the 417th Judicial District Court

Collin County, Texas

Trial Court Cause No. 417-00618-2016

MEMORANDUM OPINION

Before Justices Lang-Miers, Fillmore, and Stoddart

Opinion by Justice Stoddart

In this original proceeding, relator complains of the trial court’s September 12, 2018 order 

awarding monetary sanctions against relator and requiring relator to pay those sanctions before 

trial. Relator also seeks a determination of whether the trial court and this Court have subject 

matter jurisdiction over the contract claim in the underlying proceeding. Relator maintains that 

the designated plaintiff lacked capacity and standing to file the lawsuit and, as a result, neither the 

trial court nor this Court have subject matter jurisdiction over the case. The trial court has not yet 

ruled on relator’s Rule 91a motion to dismiss in which relator asserts his jurisdictional arguments.

To be entitled to mandamus relief, a relator must show both that the trial court has clearly 

abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 

148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). When a trial court imposes monetary 

sanctions, the party generally has an adequate remedy by appeal after final judgment. Street v. 

Second Court of Appeals, 715 S.W.2d 638, 639–40 (Tex. 1986) (orig. proceeding) (per curiam). 
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Appeal will not afford an adequate remedy, however, if the imposition of monetary sanctions 

threatens a party’s continuation of the litigation and the trial court orders the party to pay the 

sanctions before trial. Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991). “The party opposing 

the sanctions has the burden to show that the pre-judgment payment of sanctions threatens his 

willingness or ability to continue the litigation.” In re Duncan, No. 05-18-00674-CV, 2018 WL 

3301600, at *1 (Tex. App.—Dallas July 5, 2018, orig. proceeding) (mem. op.).

Here, relator argues it lacks an adequate remedy on appeal because the trial court ordered 

relator to pay the monetary sanctions before trial and requiring such a payment will substantially 

harm relator and have a preclusive effect on relator’s ability to continue to prosecute the case. 

Relator did not make this argument in the trial court and presented no evidence of the alleged harm. 

Accordingly, relator has not established that it lacks an adequate remedy on appeal. See In re 

Cannon, No. 04-04-00111-CV, 2004 WL 1732452, at *1 (Tex. App.—San Antonio Aug. 4, 2004, 

orig. proceeding) (mem. op.) (denying mandamus where relator failed to show sanctions 

threatened his willingness or ability to continue the litigation); see also In re Knox, No. 03-13-

00614-CV, 2014 WL 538758, at *1 (Tex. App.—Austin Feb. 7, 2014, orig. proceeding) (mem. 

op.) (relator’s conclusory statement that payment of sanctions would preclude her access to court 

was insufficient to meet burden of proof).

Relator also has an adequate remedy on appeal regarding the trial court’s subject matter 

jurisdiction because relator may seek mandamus relief if the trial court denies the Rule 91a motion. 

In re Essex Ins. Co., 450 S.W.3d 524, 526 (Tex. 2014) (denial of a Rule 91a motion to dismiss is 

subject to mandamus review). Moreover, it is premature to seek a writ of mandamus without the 

trial court first ruling on the very matters upon which relief is sought. Diocese of GalvestonHouston v. Stone, 892 S.W.2d 169, 173 (Tex. App.—Houston [14th Dist.] 1994, no writ) 

(mandamus relief on jurisdictional issue premature where trial court has not yet ruled on it).
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Based on the record before us, we conclude relator has an adequate appellate remedy on 

each of the issues asserted. Accordingly, we deny relator’s petition for writ of mandamus. See

TEX. R. APP. P. 52.8(a) (the court must deny the petition if the court determines relator is not

entitled to the relief sought).

181157F.P05

/Craig Stoddart/

CRAIG STODDART

JUSTICE